Parker v. Billoups

Filing 7

ORDER signed by Magistrate Judge Edmund F. Brennan on 10/03/17 GRANTING 2 Motion to Proceed IFP and DISMISSING CASE with 30 days LEAVE TO AMEND. (Benson, A.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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AKIKA PARKER,

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Plaintiff,

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No. 2:16-cv-2008-KJM-EFB PS

v.

ORDER

ANTWAUN BILLOUPS,

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Defendant.

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Plaintiff seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. 1915.1 Her

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declaration makes the showing required by 28 U.S.C. §1915(a)(1) and (2). See ECF No. 2.

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Accordingly, the request to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a).

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Determining that plaintiff may proceed in forma pauperis does not complete the required

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inquiry. Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the

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allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on

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which relief may be granted, or seeks monetary relief against an immune defendant. As discussed

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below, plaintiff’s complaint fails to state a claim and must be dismissed.

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This case, in which plaintiff is proceeding in propria persona, was referred to the
undersigned under Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1).
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Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519,

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520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it

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fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41

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(1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s obligation to provide the ‘grounds’ of

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his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of

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a cause of action’s elements will not do. Factual allegations must be enough to raise a right to

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relief above the speculative level on the assumption that all of the complaint’s allegations are

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true.” Id. (citations omitted). Dismissal is appropriate based either on the lack of cognizable

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legal theories or the lack of pleading sufficient facts to support cognizable legal theories.

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Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

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In reviewing a complaint under this standard, the court must accept as true the allegations

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of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976),

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construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the

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plaintiff’s favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must satisfy

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the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2)

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requires a complaint to include “a short and plain statement of the claim showing that the pleader

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is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds

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upon which it rests.” Twombly, 550 U.S. at 555 (citing Conley v. Gibson, 355 U.S. 41 (1957)).

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Additionally, a federal court is a court of limited jurisdiction, and may adjudicate only

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those cases authorized by the Constitution and by Congress. Kokkonen v. Guardian Life Ins. Co.,

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511 U.S. 375, 377 (1994). The basic federal jurisdiction statutes, 28 U.S.C. §§ 1331 & 1332,

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confer “federal question” and “diversity” jurisdiction, respectively. Federal question jurisdiction

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requires that the complaint (1) arise under a federal law or the U. S. Constitution, (2) allege a

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“case or controversy” within the meaning of Article III, § 2 of the U. S. Constitution, or (3) be

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authorized by a federal statute that both regulates a specific subject matter and confers federal

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jurisdiction. Baker v. Carr, 369 U.S. 186, 198 (1962). To invoke the court’s diversity

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jurisdiction, a plaintiff must specifically allege the diverse citizenship of all parties, and that the
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matter in controversy exceeds $75,000. 28 U.S.C. § 1332(a); Bautista v. Pan American World

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Airlines, Inc., 828 F.2d 546, 552 (9th Cir. 1987). A case presumably lies outside the jurisdiction

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of the federal courts unless demonstrated otherwise. Kokkonen, 511 U.S. at 376-78. Lack of

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subject matter jurisdiction may be raised at any time by either party or by the court. Attorneys

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Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-95 (9th Cir. 1996).

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The complaint concerns the troubled and failed romantic relationship between plaintiff

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and the defendant. Plaintiff, who is now 28 years old, alleges that the defendant first began

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courting her when she was 21. ECF No. 1 at 7. After the two had established a romantic

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relationship, plaintiff learned that defendant was married and also had a different girlfriend. Id. at

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8. She also claims that early in their relationship defendant “had forced intimacy with” plaintiff.

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Id. The parties’ relationship continued for several years, but eventually defendant told plaintiff

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that “he is going to get married, has a girlfriend, and wants nothing to do with [plaintiff].” Id. at

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11. Plaintiff alleges that she “doesn’t understand how to proceed in such a relationship and now

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it has landed [defendant] in court.” Id. at 9-10. She contends that defendant took advantage of

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her and that she “now wishes and requires to be compensated for her pain, suffering, and emotion

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distress.” Id. at 11.

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It does not appear from plaintiff’s complaint that this court has subject matter jurisdiction

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over plaintiff’s claim(s). Plaintiff contends that this court has diversity jurisdiction pursuant to

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28 U.S.C. § 1332. Id. at 4. However, the complaint establishes that both plaintiff and defendant

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are citizens of California, and thus diversity of citizenship is lacking. Id. at 3. Furthermore, the

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complaint does not allege any specific claims for relief, and it is not clear how the facts in the

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complaint give rise to a federal claim. Accordingly, the complaint must be dismissed for lack of

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jurisdiction.

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Plaintiff will be granted leave to file an amended complaint, if she can allege a basis for

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this court’s jurisdiction, as well as a cognizable legal theory against a proper defendant and with

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sufficient facts in support of that cognizable legal theory. Lopez v. Smith, 203 F.3d 1122, 1126-

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27 (9th Cir. 2000) (en banc) (district courts must afford pro se litigants an opportunity to amend

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to correct any deficiency in their complaints). Should plaintiff choose to file an amended
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complaint, the amended complaint shall clearly set forth the claims and allegations against each

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defendant. Any amended complaint must cure the deficiencies identified above and also adhere

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to the following requirements. It must also contain a caption including the names of all

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defendants. Fed. R. Civ. P. 10(a).

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Any amended complaint must be written or typed so that it so that it is complete in itself

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without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended

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complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the

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earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114

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F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter

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being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

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1967)).

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Finally, plaintiff is cautioned that failure to comply with the Federal Rules of Civil

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Procedure, this court’s Local Rules, or any court order may result in this action being dismissed.

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See E.D. Cal. L.R. 110.

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Accordingly, it is hereby ORDERED that:

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1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted.

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2. Plaintiff’s complaint is dismissed with leave to amend, as provided herein.

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3. Plaintiff is granted thirty days from the date of service of this order to file an amended

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complaint. The amended complaint must bear the docket number assigned to this case and must

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be labeled “First Amended Complaint.” Failure to timely file an amended complaint in

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accordance with this order will result in a recommendation this action be dismissed.

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DATED: October 3, 2017.

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